Kanpur Delhi Transport (P) Ltd. Vs. Commercial Tax Officer and ors. - Court Judgment

Excerpt:
1. in this application under section 8 of the west bengal taxation tribunal act, 1987, being for all purposes an application under articles 226 and 227 of the constitution of india, the questions ultimately requiring decision are (i) whether the goods described as "chunkey chat candy", "mehendi powder", "chicken masala powder" and "sambar masala powder" are notified goods or goods specified in part-a of schedule iv to the west bengal sales tax act, 1994 (in short, "1994 act"), and (ii) whether valuation of the seized goods was correctly made.2. the facts behind the present application are briefly these. the first applicant was transporting into west bengal various items of goods in truck no. dl-1ga-9549. near sodepur, at some distance from calcutta, the truck was intercepted and detained on march 31, 1997. on april 1, 1997 some of the items of goods being transported in the truck were seized from the driver, amrik singh, under section 70(1) of 1994 act on the ground that those goods were either notified goods or goods specified in part a of schedule iv to 1994 act, but on demand and even after sufficient opportunity having been given, the driver failed to furnish the required particulars in forms prescribed under section 68 (see seizure receipt, page a-32). after show cause notice was served on the driver on april 2, 1997 fixing april 25, 1997 as the date of hearing of the case for imposition of penalty, the driver applied for early hearing on april 3, 1997 and accordingly, the hearing was advanced, it took place on 3rd april itself and the order imposing penalty of rs. 2,55,028, being at the maximum rate of 25 per cent of the estimated value of rs. 10,20,112, was passed by respondent no. 1 on the same date. on the same date respondent no. 1 passed an order requiring security which was challenged before this tribunal in rn-109 of 1997 and ultimately the matter was taken to the high court. but that is not very material now. the seized goods were : chunkey chat candy, powders of jeera, white pepper, haldi, deggi mirch, chicken masala and sambar masala, b.o.p.p. films, motor parts, 15 numbers of air-conditioner machines and mehendi powder.3. the case of the applicant is that valuation of the seized goods was determined arbitrarily by respondent no. 1. according to the applicant, instead of rs. 10,20,112 determined by respondent no. 1, the value should be rs. 4,49,590 on the basis of documents at annexure e.respondent no. 1 determined the value on the basis of maximum retail price (mrp), whereas the valuation should have been made according to the trade price. the second contention of the applicant is that respondent no. 1 erroneously assumed that seized air-conditioner machines were complete sets and of foreign-make. according to the applicant, the air-conditioners were of indian-make (manufactured by caltan instruments pvt. ltd.) and were without compressor and gas.allegedly price of each set were rs. 4,500 as against rs. 30,000 determined by respondent no. 1. certain papers obtained from caltan instruments pvt. ltd., are relied upon by the applicant in this connection. the other contentions are that in violation of rule 227, the respondents refused to consider documents and evidence produced before them and arbitrarily determined the valuation of seized goods, and also imposed maximum penalty at 25 per cent of value. another contention of the applicant is that sections 68, 70 and 71 of 1994 act are not applicable to the applicant, unless respondents can establish that the applicant had brought the goods into west bengal with an intention to evade tax. the applicant has made a reference to the judgment of this tribunal in the case of road transport association v.inspector of commercial taxes reported in [1996] 100 stc 361 (wbtt) and road transport association v. inspector of commercial taxes [1998] 108 stc 355 (wbtt). one of the contentions of the applicant is that while imposing penalty, due regard should be paid to the degree of infraction of law and other attending circumstances. reliance has been placed on a judgment of this tribunal in the case of indrol lubricants & specialities ltd. v. inspector, commercial taxes [1990] 77 stc 118, and a judgment of the kerala high court in the case of st. michael's oil mills v. state of kerala [1988] 68 stc 360. respondent no. 2, the first revisional authority, by order dated may 29, 1988 reduced the amount of penalty to rs. 2,10,000. the second revision was preferred under section 81 of 1994 act before respondent no. 3, the deputy commissioner of commercial taxes, central section, who by order dated december 16, 1988 further reduced the amount of penalty to rs. 1,76,250. it is alleged that respondent no. 3 "wrongfully" stated in the order that he had caused a market verification for determination of valuation of caltan brand 1.5 tonnes capacity air-conditioner kits and found that the price ranged from rs. 20,000 to rs. 22,000 at the relevant time.the market verification report was not, however, allegedly supplied to the applicant. in paragraphs 19 and 20 of the application, the applicant has stated that sections 68, 70 and 71 of 1994 act and rules 210, 211, 213 and 215 of the west bengal sales tax rules, 1995 are ultra vires article 19(1)(g) of the constitution of india and articles 301 and 304 thereof. in ground (a), however, the applicant has stated that sections 2(6), 11, 14, 68, 69, 70 and 71 of 1994 act and rules 210 to 214 of 1995 rules are beyond the legislative competence of the state legislature "on the facts and in the circumstances of the case".4. at pages 28 to 30 of the application there are as many as eleven prayers from [(a) to (k)]. but there is no prayer regarding declaration of any of the provisions of 1994 act or any of the rules of 1995 rules as ultra vires the constitution of india or any article thereof.prayers (a) and (b) are for quashing the seizure, the order of penalty and the revisional orders passed by respondents nos. 2 and 3 confirming the order of penalty, but reducing the amount. prayers (c) and (g) relate to the order dated april 3, 1997 passed by respondent no. 1 regarding deposit of security. those prayers were subject-matter of rn-109 of 1997 of this tribunal and matter no. wbtt 23 of 1997 of the high court at calcutta, civil appellate side. hence, at the time of hearing mr. s.n. dokania, learned advocate for the applicant, conceded that these prayers cannot now be considered by this tribunal. prayers (d), (e) and (f) relate to the notice dated april 3, 1997 demanding the penalty that was imposed. therefore, those prayers are interlinked with prayers (a) and (b). prayer (h) is one for interim order. prayer (i) is for refund of rs. 1,00,000 deposited in cash by the applicant and release of bank guarantee for rs. 1,55,028 furnished by the applicant with the oriental bank of commerce according to direction of this tribunal and the high court respectively given in rn-109 of 1997 and wbtt 23 of 1997. prayer (j) is for cost. prayer (k) is for residual orders.5. thus, there was no prayer for declaration that any provision of 1994 act and any rule of 1995 rules is ultra vires any provision of the constitution of india or is beyond the legislative competence of the state. this point was not also pressed by mr. dokania at the time of hearing. the said provisions of 1994 act and the said rules of 1995 rules chiefly deal with provisions for preventing evasion of tax. in this connection, the supreme court observed in sardar baldev singh v.commissioner of income-tax, delhi and ajmer , in the following words : in spite of all this it seems to us that the legislation was not incompetent. under entry 54 a law could, of course, be passed imposing a tax on a person on his own income. it is not disputed that under that entry a law could also be passed to prevent a person from evading the tax payable on his own income. as is well-known the legislative entries have to be read in a very wide manner and so as to include all subsidiary and ancillary matters. so entry 54 should be read not only as authorising the imposition of a tax but also as authorising an enactment which prevents the tax imposed being evaded. if it were not to be so read, then the admitted power to tax a person on his own income might often be made infructuous by ingenious contrivances. experience has shown that attempts to evade the tax are often made.it was followed in a number of cases including sodhi transport co. v.state of u.p. . in the case of sodhi transport co. the following paragraph occurs : the levy of sales tax on goods which are held to have been sold inside the state cannot be considered as contravening article 301 of the constitution. the restrictions imposed are not also shown to be unreasonable. they do not unduly hamper trade. on the other hand they are imposed in the public interest. the contentions based on article 301 and article 19(1)(g) of the constitution are, therefore, without substance.in the face of such settled position of law, mr. dokania, learned advocate for the applicant, did not press the question of uncon-stitutionality.6. whatever might be the case of the applicant in the application, mr.dokania pressed and argued only the following points : (1) chunkey chat candy and mehendi powder which were seized and on the value of which penalty was imposed, are neither notified goods under section 10 of 1994 act, nor goods specified in part a of schedule iv. (2) chicken masala powder and sambar masala powder, similarly seized items of goods, contain more than mere spices and hence allegedly those are not specified goods. (3) seized air-conditioner machines were mere kits, and allegedly not complete machines. (5) valuation of other seized articles were made according to mrp, and not trade price, as shown in mdh price list dated january 15, 1997 relied on by the applicant.7. as regards the first contention of mr. dokania, mr. s.k. saha roy, state representative appearing for the respondents, submitted that chunkey chat candy falls within si. no. 46 of part a of schedule iv.mr. dokania himself said that the chat candy is not in powder form, but in sweet candy form. mr. saha roy submitted that mehendi powder falls under si. no. 54 of part a of schedule iv. mr. dokania said that mehendi powder is not only used for conditioning hair but also for decorating women's hands and palms. on consideration of si. no. 46, we find that it covers all varieties of lozenge and similar articles of food as well as chocolate bar and caramel chocolate and also gelatine products, etc. in our view chunkey chat candy clearly falls within si.no. 46, si. no. 54 covers perfumes, depilatories, cosmetics, hair dye, hair tonic, hair conditioner and hair lotion among other things.admittedly mehendi powder is used for hair conditioning as well as beautifying women's palms and hands. that being so, it is a hair conditioner as well as a cosmetic. therefore, in our opinion, the authorities below rightly considered chunkey chat candy and mehendi powder as goods specified in part a of schedule iv.8. it is undisputed that no required permit or declaration according to the provisions of 1994 act and 1995 rules could be produced, when intercepted, detained and seized.9. certain types of spices in powdered form are covered by si. no. 69 of part a of schedule iv. certain types of mixed spices in powdered form or broken form are covered by si. no. 13 of notification no.1066-ft dated april 13, 1995 issued under section 10 of 1994 act. mr.dokania submitted that sambar and chicken masala powders contained some of the spices in powdered form which are either notified goods or goods specified in part a of schedule iv, but they also contained some other items like salt and preservatives. mr. s.k. saha roy, learned state representative for the respondent, rightly submitted that a new case like this cannot be taken by the applicant for the first time at this stage, and that the items in question were predominantly powdered spices of the varieties which are either notified goods under section 10 or specified goods under part a of schedule iv. mr. dokania admitted that the point agitated here was not pleaded or argued before the authorities below, and also it was not pleaded in the present application. on that ground alone the applicant cannot be allowed to urge this point before us for the first time. moreover, we also agree with mr. saha roy that mere presence of salt and some other preservatives cannot take the items out of the mischief of notified goods or specified goods under part a of schedule iv. those are predominantly powdered spices. accordingly, the authorities below correctly took those items into account for imposing penalty.10. the third contention of mr. dokania, as mentioned above, is that the item, which was treated as complete air-conditioner machines were not so, but mere kits, because compressor and gas were absent in them.mr. saha roy opposed this contention by saying that the fact-finding authorities below considered this aspect and gave a reasoned finding that seized items were 15 pcs. of complete sets of air-conditioner machines. he contended that at this stage the finding of fact should not be reopened. though, respondent no. 1 did not deal with this point and proceeded on the basis that they were complete a.c. machines (presumably because no challenge was made before him), the first revisional authority, namely, the assistant commissioner of commercial taxes, central section, held as under: i find that everywhere in the records including the release order of the seized goods, the concerned item has been shown as a.c. machine (complete) and the petitioner-company accepted those goods without raising any objection. so, i do not agree with the learned advocates' contention that those goods were incomplete a.c. machines.the second revisional authority, namely, the deputy commissioner of commercial taxes, central section, held in course of his order dated december 16, 1998 that this point was not agitated before him. he wrote as under : the only point raised before me was in respect of valuation of 15 pcs. a.c. machines (brand kelton 1.5) noted at si. no. 9 of the order of the learned cto/cs who determined the valuation at rs. 30,000 each.from the above it is clear that the identity or nature of the item of a.c. machine was undisputed either before respondent no. 1 or before respondent no. 3, who was the last finding authority. from annexure page m-65, grounds of revision before respondent no. 3 (deputy commissioner) we also find that the point was not raised therein as to whether seized a.c. machines were complete or incomplete. that being the position, at this stage the applicant cannot be allowed to reagitate afresh the above point.11. mr. dokania's fourth contention was about valuation of seized a.c.machines. he did not contend before us that report, if any, of market verification referred to in order dated december 16, 1998 passed by respondent no. 3, was not made available to applicant, although such a plea was taken in ground (n) at page 26 of the application. of course, no one knows whether there was any written report at all of market verification. on the other hand, mr. dokania drew our attention to annexure pages g-49 to g-52. page g-49 is an undated certificate apparently issued by caltan instruments pvt. ltd. (manufacturer) saying that the total value of all the fifteen seized a.c. machines was rs. 67,000 only. page g-50 is apparently a quotation dated march 27, 1997 submitted to the applicant mentioning price of each set (without compressor and gas) as rs. 4,500 only, pages g-51 and g-52 comprise an affidavit (probably dated march 1, 1999, i.e., only a few days back) affirmed before a notary public of delhi by one narinder narang on behalf of the applicant, but not declaring or disclosing his nature of connection with the applicant (company). obviously, the affidavit is a very recent addition to the applicant's collection of evidence in support of its contention on the question of valuation. mr. dokania fairly conceded that these documents were never produced before respondents nos. 1, 2 and 3. these documents are, in our opinion, not trustworthy at all, but betray a very belated attempt to present applicant's own version on valuation. mr. dokania also fairly conceded that no invoice or similar document could be and can be produced to show the price. non-production of invoice or similar document to show the price of a.c. machines raises an adverse presumption that had such document been produced, it would have gone against the applicant's plea. and, no attempt was made by the applicant to rebut that presumption. we have already agreed with respondents nos. 1, 2 and 3 that the seized a.c. machines of 1.5 tonne capacity were complete machines. the valuation arrived by respondent no. 3 (rs. 21,000 each) has not been shown before us to be higher than the prevailing market price at the relevant time. therefore, we have no reason to interfere with the valuation determined. the adverse presumption will be specially raised in view of sub-rule (3) and other provisions of rule 227 of the west bengal sales tax rules, 1995, under which bill, invoice and such other documents are also to be produced.12. the last contention of mr. dokania was that the valuation was made according to the price list of mdh but at mrp rate and not at trade rate. the mdh price list was relied on by the applicant. it is to be seen at pages f-47 and f-48. it will appear there from that there is mrp as well as trade rate. at the time of imposition of penalty respondent no. 1 followed mrp and deducted 10 per cent. thus, he followed the price 10 per cent less than mrp. mrp means maximum retail price. rule 227 (already referred to), deals with the manner of imposition of penalty including the manner of determination of value.sub-rule (3)(a) of rule 227 shows that retail sale price fixed by manufacturer is to be shown by the dealer or person from whom the goods were seized by producing catalogue of such price and also bill, invoice, consignment note or similar document issued by the consignor.applicant did not produce or rely upon any of these documents except the mdh price list. again, under rule 227(5) what is required is to determine "the approximate saleable value". therefore, if the authorities below determined the value on the basis of 10 per cent less than maximum retail price, it is not contrary to law. hence, this contention of mr. dokania has no substance.13. mr. dokania appearing for the applicant did not press (like many points taken in the application) the point that penalty ought not to have been imposed at the rate of 25 per cent of saleable value. we may only refer to the reasons given by respondent no. 1 in this connection at internal page 4 of his order (page c-36). we have no reason to differ.14. in the result, the application is dismissed. no order is made for cost.

Judgment:
1. In this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, being for all purposes an application under articles 226 and 227 of the Constitution of India, the questions ultimately requiring decision are (i) whether the goods described as "chunkey chat candy", "mehendi powder", "chicken masala powder" and "sambar masala powder" are notified goods or goods specified in Part-A of Schedule IV to the West Bengal Sales Tax Act, 1994 (in short, "1994 Act"), and (ii) whether valuation of the seized goods was correctly made.

2. The facts behind the present application are briefly these. The first applicant was transporting into West Bengal various items of goods in truck No. DL-1GA-9549. Near Sodepur, at some distance from Calcutta, the truck was intercepted and detained on March 31, 1997. On April 1, 1997 some of the items of goods being transported in the truck were seized from the driver, Amrik Singh, under Section 70(1) of 1994 Act on the ground that those goods were either notified goods or goods specified in Part A of Schedule IV to 1994 Act, but on demand and even after sufficient opportunity having been given, the driver failed to furnish the required particulars in forms prescribed under Section 68 (see seizure receipt, page A-32). After show cause notice was served on the driver on April 2, 1997 fixing April 25, 1997 as the date of hearing of the case for imposition of penalty, the driver applied for early hearing on April 3, 1997 and accordingly, the hearing was advanced, it took place on 3rd April itself and the order imposing penalty of Rs. 2,55,028, being at the maximum rate of 25 per cent of the estimated value of Rs. 10,20,112, was passed by respondent No. 1 on the same date. On the same date respondent No. 1 passed an order requiring security which was challenged before this Tribunal in RN-109 of 1997 and ultimately the matter was taken to the High Court. But that is not very material now. The seized goods were : Chunkey chat candy, powders of jeera, white pepper, haldi, deggi mirch, chicken masala and sambar masala, B.O.P.P. films, motor parts, 15 numbers of air-conditioner machines and mehendi powder.

3. The case of the applicant is that valuation of the seized goods was determined arbitrarily by respondent No. 1. According to the applicant, instead of Rs. 10,20,112 determined by respondent No. 1, the value should be Rs. 4,49,590 on the basis of documents at annexure E.Respondent No. 1 determined the value on the basis of maximum retail price (MRP), whereas the valuation should have been made according to the trade price. The second contention of the applicant is that respondent No. 1 erroneously assumed that seized air-conditioner machines were complete sets and of foreign-make. According to the applicant, the air-conditioners were of Indian-make (manufactured by Caltan Instruments Pvt. Ltd.) and were without compressor and gas.

Allegedly price of each set were Rs. 4,500 as against Rs. 30,000 determined by respondent No. 1. Certain papers obtained from Caltan Instruments Pvt. Ltd., are relied upon by the applicant in this connection. The other contentions are that in violation of rule 227, the respondents refused to consider documents and evidence produced before them and arbitrarily determined the valuation of seized goods, and also imposed maximum penalty at 25 per cent of value. Another contention of the applicant is that Sections 68, 70 and 71 of 1994 Act are not applicable to the applicant, unless respondents can establish that the applicant had brought the goods into West Bengal with an intention to evade tax. The applicant has made a reference to the judgment of this Tribunal in the case of Road Transport Association v.Inspector of Commercial Taxes reported in [1996] 100 STC 361 (WBTT) and Road Transport Association v. Inspector of Commercial Taxes [1998] 108 STC 355 (WBTT). One of the contentions of the applicant is that while imposing penalty, due regard should be paid to the degree of infraction of law and other attending circumstances. Reliance has been placed on a judgment of this Tribunal in the case of Indrol Lubricants & Specialities Ltd. v. Inspector, Commercial Taxes [1990] 77 STC 118, and a judgment of the Kerala High Court in the case of St. Michael's Oil Mills v. State of Kerala [1988] 68 STC 360. Respondent No. 2, the first revisional authority, by order dated May 29, 1988 reduced the amount of penalty to Rs. 2,10,000. The second revision was preferred under Section 81 of 1994 Act before respondent No. 3, the Deputy Commissioner of Commercial Taxes, Central Section, who by order dated December 16, 1988 further reduced the amount of penalty to Rs. 1,76,250. It is alleged that respondent No. 3 "wrongfully" stated in the order that he had caused a market verification for determination of valuation of Caltan brand 1.5 tonnes capacity air-conditioner kits and found that the price ranged from Rs. 20,000 to Rs. 22,000 at the relevant time.

The market verification report was not, however, allegedly supplied to the applicant. In paragraphs 19 and 20 of the application, the applicant has stated that Sections 68, 70 and 71 of 1994 Act and rules 210, 211, 213 and 215 of the West Bengal Sales Tax Rules, 1995 are ultra vires article 19(1)(g) of the Constitution of India and articles 301 and 304 thereof. In ground (a), however, the applicant has stated that Sections 2(6), 11, 14, 68, 69, 70 and 71 of 1994 Act and rules 210 to 214 of 1995 Rules are beyond the legislative competence of the State Legislature "on the facts and in the circumstances of the case".

4. At pages 28 to 30 of the application there are as many as eleven prayers from [(A) to (K)]. But there is no prayer regarding declaration of any of the provisions of 1994 Act or any of the rules of 1995 Rules as ultra vires the Constitution of India or any article thereof.

Prayers (A) and (B) are for quashing the seizure, the order of penalty and the revisional orders passed by respondents Nos. 2 and 3 confirming the order of penalty, but reducing the amount. Prayers (C) and (G) relate to the order dated April 3, 1997 passed by respondent No. 1 regarding deposit of security. Those prayers were subject-matter of RN-109 of 1997 of this Tribunal and Matter No. WBTT 23 of 1997 of the High Court at Calcutta, Civil Appellate Side. Hence, at the time of hearing Mr. S.N. Dokania, learned Advocate for the applicant, conceded that these prayers cannot now be considered by this Tribunal. Prayers (D), (E) and (F) relate to the notice dated April 3, 1997 demanding the penalty that was imposed. Therefore, those prayers are interlinked with prayers (A) and (B). Prayer (H) is one for interim order. Prayer (I) is for refund of Rs. 1,00,000 deposited in cash by the applicant and release of bank guarantee for Rs. 1,55,028 furnished by the applicant with the Oriental Bank of Commerce according to direction of this Tribunal and the High Court respectively given in RN-109 of 1997 and WBTT 23 of 1997. Prayer (J) is for cost. Prayer (K) is for residual orders.

5. Thus, there was no prayer for declaration that any provision of 1994 Act and any rule of 1995 Rules is ultra vires any provision of the Constitution of India or is beyond the legislative competence of the State. This point was not also pressed by Mr. Dokania at the time of hearing. The said provisions of 1994 Act and the said rules of 1995 Rules chiefly deal with provisions for preventing evasion of tax. In this connection, the Supreme Court observed in Sardar Baldev Singh v.Commissioner of Income-tax, Delhi and Ajmer , in the following words : In spite of all this it seems to us that the legislation was not incompetent. Under entry 54 a law could, of course, be passed imposing a tax on a person on his own income. It is not disputed that under that entry a law could also be passed to prevent a person from evading the tax payable on his own income. As is well-known the legislative entries have to be read in a very wide manner and so as to include all subsidiary and ancillary matters. So entry 54 should be read not only as authorising the imposition of a tax but also as authorising an enactment which prevents the tax imposed being evaded. If it were not to be so read, then the admitted power to tax a person on his own income might often be made infructuous by ingenious contrivances. Experience has shown that attempts to evade the tax are often made.

It was followed in a number of cases including Sodhi Transport Co. v.State of U.P. . In the case of Sodhi Transport Co.

the following paragraph occurs : The levy of sales tax on goods which are held to have been sold inside the State cannot be considered as contravening article 301 of the Constitution. The restrictions imposed are not also shown to be unreasonable. They do not unduly hamper trade. On the other hand they are imposed in the public interest. The contentions based on article 301 and article 19(1)(g) of the Constitution are, therefore, without substance.

In the face of such settled position of law, Mr. Dokania, learned advocate for the applicant, did not press the question of uncon-stitutionality.

6. Whatever might be the case of the applicant in the application, Mr.

Dokania pressed and argued only the following points : (1) Chunkey chat candy and mehendi powder which were seized and on the value of which penalty was imposed, are neither notified goods under Section 10 of 1994 Act, nor goods specified in Part A of Schedule IV. (2) Chicken masala powder and sambar masala powder, similarly seized items of goods, contain more than mere spices and hence allegedly those are not specified goods.

(3) Seized air-conditioner machines were mere kits, and allegedly not complete machines.

(5) Valuation of other seized articles were made according to MRP, and not trade price, as shown in MDH price list dated January 15, 1997 relied on by the applicant.

7. As regards the first contention of Mr. Dokania, Mr. S.K. Saha Roy, State Representative appearing for the respondents, submitted that chunkey chat candy falls within SI. No. 46 of Part A of Schedule IV.Mr. Dokania himself said that the chat candy is not in powder form, but in sweet candy form. Mr. Saha Roy submitted that mehendi powder falls under SI. No. 54 of Part A of Schedule IV. Mr. Dokania said that mehendi powder is not only used for conditioning hair but also for decorating women's hands and palms. On consideration of SI. No. 46, we find that it covers all varieties of lozenge and similar articles of food as well as chocolate bar and caramel chocolate and also gelatine products, etc. In our view chunkey chat candy clearly falls within SI.No. 46, SI. No. 54 covers perfumes, depilatories, cosmetics, hair dye, hair tonic, hair conditioner and hair lotion among other things.

Admittedly mehendi powder is used for hair conditioning as well as beautifying women's palms and hands. That being so, it is a hair conditioner as well as a cosmetic. Therefore, in our opinion, the authorities below rightly considered chunkey chat candy and mehendi powder as goods specified in Part A of Schedule IV.8. It is undisputed that no required permit or declaration according to the provisions of 1994 Act and 1995 Rules could be produced, when intercepted, detained and seized.

9. Certain types of spices in powdered form are covered by SI. No. 69 of Part A of Schedule IV. Certain types of mixed spices in powdered form or broken form are covered by SI. No. 13 of Notification No.1066-FT dated April 13, 1995 issued under Section 10 of 1994 Act. Mr.

Dokania submitted that sambar and chicken masala powders contained some of the spices in powdered form which are either notified goods or goods specified in Part A of Schedule IV, but they also contained some other items like salt and preservatives. Mr. S.K. Saha Roy, learned State Representative for the respondent, rightly submitted that a new case like this cannot be taken by the applicant for the first time at this stage, and that the items in question were predominantly powdered spices of the varieties which are either notified goods under Section 10 or specified goods under Part A of Schedule IV. Mr. Dokania admitted that the point agitated here was not pleaded or argued before the authorities below, and also it was not pleaded in the present application. On that ground alone the applicant cannot be allowed to urge this point before us for the first time. Moreover, we also agree with Mr. Saha Roy that mere presence of salt and some other preservatives cannot take the items out of the mischief of notified goods or specified goods under Part A of Schedule IV. Those are predominantly powdered spices. Accordingly, the authorities below correctly took those items into account for imposing penalty.

10. The third contention of Mr. Dokania, as mentioned above, is that the item, which was treated as complete air-conditioner machines were not so, but mere kits, because compressor and gas were absent in them.

Mr. Saha Roy opposed this contention by saying that the fact-finding authorities below considered this aspect and gave a reasoned finding that seized items were 15 pcs. of complete sets of air-conditioner machines. He contended that at this stage the finding of fact should not be reopened. Though, respondent No. 1 did not deal with this point and proceeded on the basis that they were complete A.C. machines (presumably because no challenge was made before him), the first revisional authority, namely, the Assistant Commissioner of Commercial Taxes, Central Section, held as under: I find that everywhere in the records including the release order of the seized goods, the concerned item has been shown as A.C. machine (complete) and the petitioner-company accepted those goods without raising any objection. So, I do not agree with the learned advocates' contention that those goods were incomplete A.C. machines.

The second revisional authority, namely, the Deputy Commissioner of Commercial Taxes, Central Section, held in course of his order dated December 16, 1998 that this point was not agitated before him. He wrote as under : The only point raised before me was in respect of valuation of 15 pcs. A.C. machines (brand Kelton 1.5) noted at SI. No. 9 of the order of the learned CTO/CS who determined the valuation at Rs. 30,000 each.

From the above it is clear that the identity or nature of the item of A.C. machine was undisputed either before respondent No. 1 or before respondent No. 3, who was the last finding authority. From annexure page M-65, grounds of revision before respondent No. 3 (Deputy Commissioner) we also find that the point was not raised therein as to whether seized A.C. machines were complete or incomplete. That being the position, at this stage the applicant cannot be allowed to reagitate afresh the above point.

11. Mr. Dokania's fourth contention was about valuation of seized A.C.machines. He did not contend before us that report, if any, of market verification referred to in order dated December 16, 1998 passed by respondent No. 3, was not made available to applicant, although such a plea was taken in ground (n) at page 26 of the application. Of course, no one knows whether there was any written report at all of market verification. On the other hand, Mr. Dokania drew our attention to annexure pages G-49 to G-52. Page G-49 is an undated certificate apparently issued by Caltan Instruments Pvt. Ltd. (manufacturer) saying that the total value of all the fifteen seized A.C. machines was Rs. 67,000 only. Page G-50 is apparently a quotation dated March 27, 1997 submitted to the applicant mentioning price of each set (without compressor and gas) as Rs. 4,500 only, pages G-51 and G-52 comprise an affidavit (probably dated March 1, 1999, i.e., only a few days back) affirmed before a Notary Public of Delhi by one Narinder Narang on behalf of the applicant, but not declaring or disclosing his nature of connection with the applicant (company). Obviously, the affidavit is a very recent addition to the applicant's collection of evidence in support of its contention on the question of valuation. Mr. Dokania fairly conceded that these documents were never produced before respondents Nos. 1, 2 and 3. These documents are, in our opinion, not trustworthy at all, but betray a very belated attempt to present applicant's own version on valuation. Mr. Dokania also fairly conceded that no invoice or similar document could be and can be produced to show the price. Non-production of invoice or similar document to show the price of A.C. machines raises an adverse presumption that had such document been produced, it would have gone against the applicant's plea. And, no attempt was made by the applicant to rebut that presumption. We have already agreed with respondents Nos. 1, 2 and 3 that the seized A.C. machines of 1.5 tonne capacity were complete machines. The valuation arrived by respondent No. 3 (Rs. 21,000 each) has not been shown before us to be higher than the prevailing market price at the relevant time. Therefore, we have no reason to interfere with the valuation determined. The adverse presumption will be specially raised in view of Sub-rule (3) and other provisions of rule 227 of the West Bengal Sales Tax Rules, 1995, under which bill, invoice and such other documents are also to be produced.

12. The last contention of Mr. Dokania was that the valuation was made according to the price list of MDH but at MRP rate and not at trade rate. The MDH price list was relied on by the applicant. It is to be seen at pages F-47 and F-48. It will appear there from that there is MRP as well as trade rate. At the time of imposition of penalty respondent No. 1 followed MRP and deducted 10 per cent. Thus, he followed the price 10 per cent less than MRP. MRP means maximum retail price. Rule 227 (already referred to), deals with the manner of imposition of penalty including the manner of determination of value.

Sub-rule (3)(a) of rule 227 shows that retail sale price fixed by manufacturer is to be shown by the dealer or person from whom the goods were seized by producing catalogue of such price and also bill, invoice, consignment note or similar document issued by the consignor.

Applicant did not produce or rely upon any of these documents except the MDH price list. Again, under rule 227(5) what is required is to determine "the approximate saleable value". Therefore, if the authorities below determined the value on the basis of 10 per cent less than maximum retail price, it is not contrary to law. Hence, this contention of Mr. Dokania has no substance.

13. Mr. Dokania appearing for the applicant did not press (like many points taken in the application) the point that penalty ought not to have been imposed at the rate of 25 per cent of saleable value. We may only refer to the reasons given by respondent No. 1 in this connection at internal page 4 of his order (page C-36). We have no reason to differ.

14. In the result, the application is dismissed. No order is made for cost.